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Booth v. Galveston County

United States District Court, S.D. Texas, Galveston Division

August 7, 2019

AARON BOOTH Plaintiff.



         Pending before the Court are two separate motions for preliminary injunction filed by Plaintiff Aaron Booth ("Booth"). The first motion, Plaintiffs Motion for Preliminary Injunction, contends that Galveston County's bail system violates the United States Constitution and asks this Court to issue an order requiring certain procedural changes in how Galveston County's secured money bail system operates. See Dkt. 3-1. The second motion, Plaintiffs Motion for Preliminary Injunction [sic] Requiring Counsel at Initial Bail Hearings, seeks an order requiring Galveston County to provide counsel at initial bail hearings for those felony arrestees who cannot afford representation. See Dkt. 205. The parties have submitted extensive briefing on the legal issues involved, provided voluminous exhibits, and presented live testimony from 11 witnesses at a day-long preliminary injunction hearing. After thoroughly reviewing the briefing, analyzing the applicable law, considering the evidentiary submissions, entertaining live testimony, and hearing argument from counsel, the Court RECOMMENDS that the Motion for Preliminary Injunction (Dkt. 3-1) be DENIED and the Motion for Preliminary Injunction [sic] Requiring Counsel at Initial Bail Hearings (Dkt. 205) be GRANTED. This Memorandum and Recommendation constitutes the Court's findings of facts and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.


         In recent years, a number of lawsuits have been filed all across this great nation challenging long-established bail practices. This case is one of those lawsuits. It focuses on Galveston County's pretrial detention system for felony arrestees and requires this Court to assess the constitutionality of that pretrial detention system.

         Booth was arrested in April 2018 for an alleged felony. A prosecutor recommended Booth's bail be set at $20, 000.00. After being booked into Galveston County Jail, Booth appeared before a magistrate. The magistrate informed Booth of the charges against him, advised him of his rights, and set bail. More specifically, the magistrate signed an order requiring Booth to post a $20, 000.00 bond to be released from jail pending the resolution of his criminal case. Booth did not have an attorney at the time bail was set. Only after the hearing at which bail was determined did Booth have the opportunity to complete the paperwork demonstrating his financial inability to hire counsel. Booth received a court-appointed counsel the day after his bail hearing. Booth claims that he could not afford the amount required for his release and, as a result, spent 54 days in custody before a bail reduction hearing was held.

         Booth brings this lawsuit on behalf of himself and all others similarly situated, alleging that Galveston County, a group of Galveston County District Court Judges (the "District Court Judges"), several Galveston County Magistrate Judges, and Galveston County District Attorney Jack Roady (the "District Attorney") all act together to employ an unconstitutional bail policy that results in the routine detention of Galveston County felony arrestees before trial solely due to their inability to pay bail. Booth also alleges that the same policy denies arrestees their constitutional right to counsel at a "critical stage" of the prosecution: the initial bail hearing.

         Booth seeks both injunctive and declaratory relief.


         Black's Law Dictionary defines "bail" as "[a] security such as cash, a bond, or property; esp., security required by a court for the release of a criminal defendant who must appear in court at a future time." Bail, Black's Law Dictionary (11th ed. 2019). See also Tex. Code Crim. Pro. Art. 17.01 (defining "bail" as "the security given by the accused that he will appear and answer before the proper court the accusation brought against him, and includes a bail bond or a personal bond").

         Given that this case concerns the use of bail in Galveston County, a brief history of bail is appropriate to set the stage for the analysis to come.

Bail originated in medieval England as a device to free untried prisoners. The penalty for most crimes was a fine paid as compensation to the victim. When capital and corporal punishment replaced fines, abuses in the delay between arrest and trial began to emerge. In response, the common law right to bail was codified into English law, and the principles that an accused is presumed innocent and entitled to personal liberty pending trial were incorporated into the Magna Carta.

Buffin v. City and Cty. of San Francisco, No. 15-CV-04959-YGR, 2019 WL 1017537, at *11 (N.D. Cal. Mar. 4, 2019) (internal quotation marks, footnote, and citations omitted).

         "American history makes clear that the settlers brought this practice with them to America." Jennings v. Rodriguez, 138 S.Ct. 830, 863 (2018) (Breyer, J., dissenting). Colonial constitutions, the Northwest Ordinance of 1787, the Judiciary Act of 1789, and the vast majority of state constitutions throughout history have protected a right to bail by sufficient sureties. See Id. at 863-64. The United States Constitution also addresses the use of bail. The Eighth Amendment, which prohibits "excessive bail," recognizes both the obvious liberty interest of pretrial detainees (those accused, but not yet convicted) and the government's legitimate interest in ensuring the accused's appearance at trial. U.S. Const. Amend. VIII. It does so by ensuring that "the fixing of bail for any individual defendant must be based upon standards relevant to the purpose of assuring the presence of that defendant." Stack v. Boyle, 342 U.S. 1, 5 (1951). Accordingly, the amount of bail cannot be "excessive"-that is, "higher than . . . reasonably calculated to" ensure the accused's appearance. Id. (citation omitted).

         The presumption of innocence is a bedrock principle of the American criminal justice system. As the Supreme Court has explained: "Unless th[e] right to bail before trial is preserved, the presumption of innocence, secured only after centuries of struggle, would lose its meaning." Id. at 4. Thus, in our system, monetary bail is the mechanism that protects the well-established "right to freedom before conviction," while also protecting society's interest in ensuring that defendants answer the charges against them. Id. Accordingly, "liberty is the norm, and detention ... is the carefully limited exception." United States v. Salerno, 481 U.S. 739, 755 (1987).


         Just last year, the Fifth Circuit issued a landmark opinion in a case challenging Harris County's[2] system of setting bail for poor misdemeanor arrestees. See ODonnell v. Harris Cty. (ODonnell II), 892 F.3d 147 (5th Cir. 2018).[3] As a result, ODonnell II provides the framework by which the constitutionality of any pretrial detention system within the Fifth Circuit must be measured. In ODonnell II, the plaintiffs brought a class action lawsuit against Harris County and several of its officials alleging that Harris County's system of setting bail for indigent misdemeanor arrestees violated Texas statutory and constitutional law, as well as the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After an eight-day preliminary injunction hearing, the District Court granted the request for a preliminary injunction, finding that the plaintiffs were likely to prevail on their Equal Protection and Due Process claims. See Id. at 152. The District Court's injunction required the implementation of safeguards to prevent the automatic imposition of pretrial detention on indigent misdemeanor arrestees and the release of numerous detainees subjected to Harris County's constitutionally deficient bail system. See Id. at 155.

         The Fifth Circuit largely upheld the injunction, concluding that it is constitutionally impermissible to automatically impose pretrial detention on indigent misdemeanor arrestees. On the due process front, the Fifth Circuit held that procedures must be in place that "sufficiently protect detainees from magistrates imposing bail as an 'instrument of oppression.'" Id. at 159. Because bail for indigent arrestees in Harris County was almost always set at an amount that detained the defendant, the Fifth Circuit found a violation of the Due Process Clause. See Id. In terms of the Equal Protection Clause, the Fifth Circuit affirmed the District Court's holding that Harris County's bail-setting procedures violated the Equal Protection Clause because "they treat otherwise similarly-situated misdemeanor arrestees differently based solely on their relative wealth." Id. at 161. As the Fifth Circuit explained:

In sum, the essence of the district court's equal protection analysis can be boiled down to the following: take two misdemeanor arrestees who are identical in every way-same charge, same criminal backgrounds, same circumstances, etc.-except that one is wealthy and one is indigent. Applying the County's current custom and practice, with their lack of individualized assessment and mechanical application of the secured bail schedule, both arrestees would almost certainly receive identical secured bail amounts. One arrestee is able to post bond, and the other is not. As a result, the wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration. The poor arrestee, by contrast, must bear the brunt of all of these, simply because he has less money than his wealthy counterpart. The district court held that this state of affairs violates the equal protection clause, and we agree.

Id. at 163.

         In addressing the appropriate scope of the injunction, the Fifth Circuit held that individualized hearings after which magistrates had to "specifically enunciate their individualized, case-specific reasons for [imposing bail] is a sufficient remedy." Id. at 160. The procedures required for such hearings include "notice, an opportunity to be heard and submit evidence within 48 hours of arrest, and a reasoned decision by an impartial decisionmaker." Id. at 163. The Fifth Circuit then provided detailed guidance on how a properly crafted injunction should look, cautioning that it should not "amount[] to the outright elimination of secured bail for indigent misdemeanor arrestees." Id.


         The procedures governing how the Galveston County bail system functions for felony arrestees have changed dramatically since this lawsuit was initially filed. As a result, the facts described below are arranged in two categories: Past Bail Schedule Policy and Current Bail Schedule Policy. Past Bail Schedule Policy refers to the system in place at the time of Booth's arrest in April 2018. Current Bail Schedule Policy refers to the procedures utilized today.

         Past Bail Schedule Policy.

         At the time of Booth's arrest, Galveston County's bail system for felony arrestees functioned in the following manner:

• After a felony arrestee was taken into custody, the arresting officer would prepare a preprinted bail order form identifying the charges levied against the arrestee, as well as a bail amount for each charge.
• In setting the bail amounts for felony charges, the arresting officer would call the intake district attorney, who would then recommend a bond amount based on amounts reflected in a schedule prepared by the District Attorney for use by attorneys in his office. If the arrestee had multiple charges, the recommended bail amounts for each charge were added together.
• After the arresting officer completed the bail order form, the felony arrestee could be booked into the Galveston County jail.
• Usually within 24 hours of incarceration, an arrestee appeared before a magistrate for a proceeding referred to as "magistration."[4] This was the first time an arrestee would appear before a judicial officer. At magistration, the magistrate would briefly explain the charges levied against the arrestee, inform the arrestee of his basic rights, including the right to remain silent, and ask the arrestee a few questions (Are you a United States citizen? Have you served in the armed forces? Are you out on bail for another offense?). The magistrate also set bail at this proceeding. However, the magistrate did not possess any financial information indicating an arrestee's ability or inability to make bail, nor did the magistrate inquire into the arrestee's financial status. As a practical matter, the magistrate routinely adopted the bail amounts contained on the bail order form, which had been completed by the arresting officer in conjunction with the intake district attorney.
• Arrestees were not represented by counsel during magistration.
• After magistration, an arrestee would finally have an opportunity to complete a pauper's oath, declaring his indigency and requesting a court appointed attorney.
• The next hearing, which would be the first hearing the arrestee would have court appointed counsel, would occur anywhere from a few days to a few weeks after magistration. Accordingly, if an arrestee was unable to pay the bail set at magistration, the arrestee might be held for weeks solely based on his inability to pay.

         Current Bail Schedule Policy.

         Sometime after Booth's arrest and during the pendency of this lawsuit, significant changes were made to Galveston County's magistration system with the express goal to bring it into compliance with ODonnell II. The new system functions as follows:

• After a felony arrestee is taken into custody, the arresting officer prepares a bail order form identifying the charges levied against the arrestee, as well as a bail amount for each charge.
• In setting the bail amounts for felony charges, the arresting officer calls the intake district attorney, who recommends a bond amount based on amounts reflected in a schedule prepared by the District Attorney for use by attorneys in his office. If the arrestee has multiple charges, the recommended bail amounts for each charge are added together.
• After the arresting officer completes the bail order form, the felony arrestee is booked into the Galveston County jail.
• The first time an arrestee appears before a judicial officer is at magistration. Galveston County magistrations occur twice a day at 7:00 a.m. and 7:00 p.m. Given this daily schedule, an arrestee usually appears for magistration within 12 hours of incarceration. Sometime prior to magistration, the arrestee is interviewed by an individual from the Personal Bond Office. Created in July 2018, the Personal Bond Office is responsible for interviewing individuals about their financial condition as they are booked into jail. During this interview, the arrestee completes a detailed financial affidavit. This detailed financial affidavit is included in the packet presented to the magistrate before magistration.
• At magistration, the magistrate still explains the charges levied against the arrestee, provides statutory warnings such as the right to remain silent, asks a few questions, and sets bail. However, under the new system, at the time bail is set the magistrate now possesses the detailed financial affidavit the arrestee completed.
• At the initial bail hearing held at magistration, Galveston County does not provide defense counsel to those arrestees who are financially unable to afford representation. There is a written policy officially adopted by the District Court Judges, effective October 1, 2018, that makes clear that indigent arrestees do not receive appointed representation during the initial bail hearing.
• Galveston County's written policy provides that within 48 hours of magistration, arrestees whose financial affidavits indicate that they would not be able to post the amount set as bail are brought before a magistrate for a bail review hearing. As a practical matter, this bail review hearing typically occurs 12 hours after magistration, either at 7:00 a.m. or 7:00 p.m. The bail review hearings take place right before the initial magistrations.
• At the bail review hearing, Galveston County provides an indigent arrestee with counsel. More specifically, the District Court Judges appoint a single defense lawyer to appear at every bail review docket, and that attorney is available to advise and represent arrestees at the bail review hearing. Prior to the bail review hearing, arrestees can meet privately with the lawyer to discuss their financial situation in preparation for the bail review hearing. The defense lawyer is appointed for the limited purpose of handling the bail review hearing.
• At the bail review hearing, defense counsel and a prosecutor make arguments and present evidence to either reduce or maintain the previously set bail amount. The magistrate is supposed to explain the reason for his or her decision either in writing or verbally for the record.

         PRELIMINARY ...

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